Bailey v. Richardson , 182 F.2d 46 (D.C. Cir. 1950) [footnotes and most citations omitted]

JUDGE PRETTYMAN, writing for the court:

. . .

The Facts.

Appellant Bailey was employed in the classified civil service of the United States Government from August 19, 1939, to June 28, 1947. Upon the latter date she was separated from the service due to reduction in force. On March 25, 1948, she was given a temporary appointment, and on May 28, 1948, she was reinstated under circumstances to be related.

The regulations of the Civil Service Commission in effect at the time of appellant's reinstatement made reinstatements subject to the condition that removal might be ordered by the Commission if investigation of  the individual's qualifications, made within eighteen months, disclosed disqualification. The regulations listed as a disqualification:

"(7) On all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States."

On July 31, 1948, two months after her reinstatement, Miss Bailey received from the Regional Loyalty Board of the Commission a letter and an enclosed interrogatory. The letter said in part:

". . . The Commission has received information to the effect that you are or have been a member of the Communist Party or the Communist Political Association; that you have attended meetings of the Communist Party, and have associated on numerous occasions with known Communist Party members.

* * * * * *

The Commission has received information to the effect that you are or have been a member of the American League for Peace and Democracy, an organization which has been declared by the Attorney General to come within the purview of Executive Order 9835.

* * * * * *

The Commission has received information to the effect that you are or have been a member of the Washington Committee for Democratic Action, an organization which has been declared by the Attorney General to come within the purview of Executive Order 9835.

* * * * * *

"Are you now, or have ever been, a member of, or in any manner affiliated with, the Nazi or Fascist movements or with any organization or political party whose objective is now, or has ever been, the overthrow of the Constitutional Government of the United States?"

Miss Bailey answered . . . denying each item of information . . . received by the Commission, except that she admitted past membership for a short time in the American League for Peace and Democracy. She vigorously asserted her loyalty to the United States. She requested an administrative hearing. A hearing was held before the Regional Board. She appeared and testified and presented other witnesses and numerous affidavits. No person other than those presented by her testified.

On November 1, 1948, the Regional Board advised the Federal Security Agency, in which Miss Bailey was employed, that:

"As a result of such investigation and after a hearing before this Board, it was found that, on all the evidence, reasonable grounds exist for belief that Miss Bailey is disloyal to the Government of the United States.

"Therefore, she has been rated ineligible for Federal employment; she has been barred from competing in civil service examinations for a period of three years, and your office is instructed to separate her from the service.'

. . . Miss Bailey appealed to the Loyalty Review Board and requested a hearing. Miss Bailey appeared, testified, and presented affidavits. No person other than Miss Bailey testified, and no affidavits other than hers were presented on the record.

On February 9, 1949, the Chairman of the Loyalty Review Board advised the Federal Security Agency that the finding of the Regional Board was sustained, and he requested that the Agency remove Miss Bailey's name from the rolls. Notice to that effect was sent to counsel for Miss Bailey on the same day. . . .

The rights claimed by and for appellant must be discovered accurately and defined precisely. The events with which we are concerned were not accidental, thoughtless or mere petty tyrannies of subordinate officials. They were the deliberate design of the executive branch of the Government, knowingly supported by the Congress.

The case presented for Miss Bailey is undoubtedly appealing. She was denied reinstatement in her former employment because Government officials found reasonable ground to believe her disloyal. She was not given a trial in any sense of the word, and she does not know who informed upon her. Thus viewed, her situation appeals powerfully to our sense of the fair and the just. But the case must be placed in context and in perspective.

The Constitution placed upon the President and the Congress, and upon them alone, responsibility for the welfare of this country in the arena of world affairs. It so happens that we are presently in an adversary position to a government whose most successful recent method of contest is the infiltration of a government service by its sympathizers. This is the context of Miss Bailey's question.

The essence of her complaint is . . . that she was denied reinstatement without revelation by the Government of the names of those who informed against her and of the method by which her alleged activities were detected. So the question actually posed by the case is whether the President is faced with an inescapable dilemma, either to continue in Government employment a person whose loyalty he reasonably suspects or else to reveal publicly the methods by which he detects disloyalty and the names of any persons who may venture to assist him.

. . . The presentation of appellant's contentions is impressive. Each detail of the trial which she unquestionably did not get is depicted separately, in a mounting cumulation into analogies to the Dreyfus case and the Nazi judicial process. Thus, a picture of a simple black-and-white fact- that appellant did not get a trial in the judicial sense- is drawn in bold and appealing colors. But the question is not whether she had a trial. The question is whether she should have had one. . .

If the whole of this case were as appellant pictures it, if we had only to decide the question which she states and as she states it, our task would indeed be simple and attractively pleasant. But it is not so. We are dealing with a major clash between individual and public interests. We must ascertain with precision whether individual rights are involved, and we must then weigh the sum of those rights, if there be any, against the inexorable necessities of the Government. We must examine not only one side of the controversy but both sides.

. . . We are of opinion that compliance with the Sixth Amendment is not a prerequisite to the dismissal of an employee from the Federal Government classified civil service. It is apparently admitted on behalf of appellant that this conclusion is true generally speaking, but it is said that dismissal for suspicion of disloyalty is an exception and that an employee cannot be dismissed for that one particular reason without a jury trial, confrontation by witnesses, etc., in a judicial proceeding. We shall discuss that claim of exception in a moment.

It is next said on behalf of appellant that the due process clause of the Fifth Amendment requires that she be afforded a hearing of the quasi-judicial type before being dismissed. The due process clause provides: "No person shall * * * be deprived of life, liberty, or property, without due process of law; * * * ." It has been held repeatedly and consistently that Government employ is not "property" and that in this particular it is not a contract. We are unable to perceive how it could be held to be "liberty." Certainly it is not "life." So much that is clear would seem to dispose of the point. In terms the due process clause does not apply to the holding of a Government office. . .

The Constitution makes the President responsible for the execution of the laws and makes the Congress responsible for the vesting of appointments in the executive branch. Those two authorities are, therefore, responsible for the ability, the integrity, and the loyalty of the personnel of the executive branch. That responsibility necessarily includes the power to choose employees for executive duty, and the power to remove those deemed not qualified is a correlative power. No function is more completely internal to a branch of government than the selection and retention or dismissal of its employees. So it has been held many times that the power of removal is an incident of the power of appointment.

In the absence of statute or ancient custom to the contrary, executive offices are held at the will of the appointing authority, not for life or for fixed terms. If removal be at will, of what purpose would process be? To hold office at the will of a superior and to be removable therefrom only by constitutional due process of law are opposite and inherently conflicting ideas. Due process of law is not applicable unless one is being deprived of something to which he has a right. . .

We hold that the due process of law clause of the Fifth Amendment does not restrict the President's discretion or the prescriptive power of Congress in respect to executive personnel. . .

It is next said that appellant's dismissal impinged upon the rights of free speech and assembly protected by the First Amendment, since the dismissal was premised upon alleged political activity. This suggestion goes not to the procedure but to the ultimate validity of the dismissal itself. But the plain hard fact is that so far as the Constitution is concerned there is no prohibition against the dismissal of Government employees because of their political beliefs, activities or affiliations. That document, standing alone, does not prevent Republican Presidents from dismissing Democrats or Democratic Presidents from dismissing Republicans. From the beginning, such has been the practice, with variations in scope; The reason that it has not continued to so great an extent is because the people became convinced that it was not good government and the Congress and the President wrote that view into statutes and regulations. They, not the Constitution, give Government employees such protection as they have against dismissal for political reasons. . .

The First Amendment guarantees free speech and assembly, but it does not guarantee Government employ. It does not say that if the people elect an executive and a legislature with specified political objectives, those officials must work through subordinates of other political tenets, if, perchance, such are then in office. . .

It is said that the loyalty program as applied in this particular case went beyond the power of the Congress and of the President to regulate the conduct of Government employees.

We must at this point be careful to note the precise ground upon which appellant was dismissed. It was that in the judgment of authorized executive officials "reasonable grounds exist for belief that Miss Bailey is disloyal to the Government of the United States." So far as we have been able to ascertain, it is nowhere disputed that employees in fact disloyal to the Government may and should be removed. A classification of loyal and disloyal is undoubtedly a proper one descriptive of qualification and disqualification for public office. . .

We cannot ignore the world situation in which not merely two ideologies but two potentially adverse forces presently exist, and certainly we cannot require that the President and the Congress ignore it. Infiltration of government service is now a recognized technique for the overthrow of government. We do not think that the individual rights guaranteed by the Constitution necessarily mean that a government dedicated to those rights cannot preserve itself in the world as it is. This case presents a small segment of that momentous question. In the light of all that is well known, much of which is recited in opinions of the Supreme Court, we cannot say that a policy of caution in respect to members of the Communist Party in the Government service under current circumstances is forbidden by any restriction in the Constitution. The risks are for the President to estimate, and the assumption of risk is for him to decide. If he thinks that under present circumstances only those whose loyalty is beyond suspicion should be employed by this Government, the policy is his to make. The responsibility in this field is his, and the power to meet it must also be his. The judiciary cannot dictate that he must either retain in Government service those whom he reasonably suspects or else reveal publicly the means and methods by which he detects disloyalty. . .

It is our clear opinion that the President, absent congressional restriction, may remove from Government service any person of whose loyalty he is not completely convinced. He may do so without assigning any reason and without giving the employee any explanatory notice. If, as a matter of policy, he chooses to give the employee a general description of the information which concerns him and to hear what the employee has to say, he does not thereby strip himself of any portion of his constitutional power to choose and to remove.

We conclude that the Executive Order before us and the proceedings under it violated no congressional limitation upon the executive power of removal; that no constitutional right was involved in this non-appointment or dismissal; and that, in so far as the circumstances imposed hardship upon the individual, the exigencies of government in the public interest under current conditions must prevail, as they always must when a similar clash arises.

Able pleas are made based upon the American passion for fair play and upon the sincere fears of patriotic men that unqueried and unrestricted power of removal in the President may lead to tyranny. Such pleas are to be neither ignored nor belittled, but their forum is the Congress and the President's office; "The problem'"as the executive director of the National Civil Service League has written, is "not so much a matter of the legal issues involved as it is practical application of the President's loyalty review order and its administration."

Finding constitutional power for the procedure here followed, and no violation of congressional mandate, our function is exhausted. We have no concern with executive or legislative policy or with the processes by which those branches of the Government fulfill their constitutional responsibilities.

EDGERTON, Circuit Judge (dissenting).

Without trial by jury, without evidence, and without even being allowed to confront her accusers or to know their identity, a citizen of the United States has been found disloyal to the government of the United States.

For her supposed disloyal thoughts she has been punished by dismissal from a wholly nonsensitive position in which her efficiency rating was high. The case received nation-wide publicity. Ostracism inevitable followed; A finding of disloyalty is closely akin to a finding a treason. The public hardly distinguishes between the two.

No charges were served on appellant. The chairman of the Regional Board said "Nobody has presented any charges." The Board told appellant it was inquiring whether there were reasonable grounds for believing she was disloyal to the government of the United States. The Federal Bureau of Investigation had reported that informants believed to be reliable had made general statements purporting to connect her with the Communist Party. These reports were not disclosed to the appellant and have not been disclosed in court. The informants were not identified to the appellant or even to the Board. Their statements were admittedly not made under oath. The appellant denied under oath any membership in and any relationship or sympathy with the Communist Party, any activities connected with it or with communism, and any affiliation with any organization that advocated overthrow of the government of the United States. She asserted her loyalty to the government of the United States. She admitted attending one Communist meeting in 1932 in connection with a seminar study of the platforms of the various parties while she was a student at Bryn Mawr.

Appellant had no power to subpoena witnesses. Though it takes courage to appear as a voluntary defense witness in a loyalty case, four appeared. One was the pastor of the Methodist church of which appellant is an active member. He testified: "When this charge or information came to me I was not only surprised, I was dumfounded. * * * People in our community and in our church think of her and her family in the highest terms." Three officials of appellant's government agency, the United States Employment Service, who had known appellant professionally and socially for years, testified respectively that they were "extremely shocked'"by the suggestion of her being disloyal, that it was "inconceivable" and "out of reason." Persons prominent in business, government and education who knew appellant but could not be present submitted affidavits.

No witness offered evidence, even hearsay evidence, against appellant. No affidavits were introduced against her. The record consists entirely of evidence in her favor. Yet the Board purported to find "on all the evidence" that there were reasonable grounds for believing she was disloyal to the government of the United States. Appellees admit the Board made this finding "after considering all the evidence, including the confidential reports of the Federal Bureau of Investigation." The Board directed the Federal Security Agency to suspend appellant pending her appeal to the Loyalty Review Board, and told her she was barred from civil service examinations for three years.

Appellant appeared and testified before a panel of the Loyalty Review Board. She submitted her own affidavit and the affidavits of some 70 persons who knew her, including bankers, corporate officials, federal and state officials, union members, and others. Again no one testified against her. She proved she had publicly and to the knowledge of a number of the affiants taken positions inconsistent with Communist sympathies. . .

Against all this, there were only the unsworn reports in the secret files to the effect that unsworn statements of a general sort, purporting to connect appellant with Communism, had been made by unnamed persons. Some if not all of these statements did not purport to be based on knowledge, but only on belief. Appellant sought to learn the names of the informants or, if their names were confidential, than at least whether they had been active in appellant's union, in which there were factional quarrels. The Board did not furnish or even have this information. Chairman Richardson said: "I haven't the slightest knowledge as to who they were or how active they have been in anything." All that the Board knew or we know about the informants is that unidentified members of the Federal Bureau of Investigation, who did not appear before the Board, believed them to be reliable. To quote again from the record:

Chairman Richardson: I can only say to you that five or six of the reports come from informants certified to us by the Federal Bureau of Investigation as experienced and entirely reliable.

Mr. Seasongood: Here is a statement that it was ascertained you were a member of the Communist Party in the District of Columbia as early as 1935, and that in the early days of her Party membership she attended Communist Party meetings. * * * Here is another that says you were a member of the Communist Party, and he bases his statement on his knowledge of your association with known Communists for the past seven or eight years. That is part of the evidence that was submitted to us.

Mr. Porter: Is it under oath?

Chairmen Richardson: I don't think so.

Mr. Seasongood: It is a person of known responsibility who had proffered information concerning Communist activity in the District of Columbia. * * * Here is another one: "considers appointee a member of the Communist Party, and if not an actual member, one who is entirely controlled by the wishes of the Communist Leaders in the Distrist of Columbia."

On such material, the Review Board sustained the action of the Regional Board and directed the Federal Security Agency to dismiss the appellant. However respectable her anonymous accusers may have been, if her dismissal is sustained the livelihood and reputation of any civil servant today and perhaps of any American tomorrow are at the mercy not only of an innocently mistaken informer but also of a malicious or demented one unless his defect is apparent to the agent who interviews him.

Appellant's dismissal violates both the Constitution and the Executive Order. . .

Not only the basic right to judicial trial but every one of these basic safeguards . . . was violated here. (1) The appellant was not tried by a jury. (2) She was not clearly informed of the charge against her. . . (3) The appellant violated no law. . . (5) She was not confronted with any witnesses against her. . .

Appellant's dismissal abridges freedom of speech and assembly. . . [T]he premise that government employment is a privilege does not support the conclusion that it may be granted on condition that certain economic or political ideas not be entertained. Though members of minority parties have often been dismissed, in the past, to make room for members of a party in power, any comprehensive practice of that sort would today be unthinkable as well as illegal, and the Supreme Court has plainly indicated it would also be unconstitutional; The Court pointed out in the Mitchell case that Congress could not "enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office,  or that no federal employee shall attend Mass or take any active part in missionary work."

. . . Since the present appellant was not a policy-making officer, had no access to state secrets, and was not even in a sensitive agency, it is doubtful whether any political opinions of hers, however obnoxious, could reasonably be deemed to interfere with the efficiency of the service. But the question is, I think, immaterial here, for the "vague and indeterminate boundaries" of the term "disloyal" have made the Executive Order as construed and applied a restraint on many opinions that certainly cannot be deemed to interfere with the efficiency of the service.

In loyalty hearings the following questions have been asked of employees against whom charges have been brought.

"Do you read a good many books?"
"'What books do you read?"
"What newspapers do you buy or subscribe to?"
"Do you think that Russian Communism is likely to succeed?"
"How do you explain the fact that you have an album of Paul Robeson records in your home?"
"Do you ever entertain Negroes in your home?"
"Is it not true that you lived next door to and therefore were closely associated with a member of the I.W.W.?"

Too often the line of questioning has revolved around conformity with prevailing mores in personal habits and personal opinion. A woman employee was accused of disloyalty because, at the time of siege of Stalingrad, she collected money for Russian war relief (she also collected money for British and French relief). A record filed in this court shows that an accused employee was taken to task for membership in Consumers Union and for favoring legislation against racial discrimination; The record in the present case contains the following colloquy between a member of the Regional Board and the present appellant:

Mr. Blair: Did you ever write a letter to the Red Cross about the segregation of blood?
Miss Bailey: I do not recall. . .

No doubt some boards are quite aware that unconventional views and conduct have to tendency to indicate disloyalty. But the fact remains that some boards imagine the contrary. This fact is only too well known. It puts government employees under economic and social pressure to protect their jobs and reputations by expressing in words and conduct only the most orthodox opinions on political, economic, and social questions. . .

Freedoms that may not be abridged by law may not be abridged by executive order. . . Appellant's dismissal abridges not only freedom of speech but freedom of thought. Whatever disloyalty means in the present connection, it is not speech but a state of mind. The appellant was dismissed for thinking prohibited thoughts. A constitution that forbids speech control does not permit thought control.

Appellant's dismissal attributes guilt by association, and thereby denies both the freedom of assembly guaranteed by the First Amendment and the due process of law guaranteed by the Fifth. The appellant was dismissed as disloyal because she was believed to be a member of associate of the Communist Party. . .

The court thinks Miss Bailey's interest and the public interest conflict. I think they coincide. Since Miss Bailey's dismissal from a nonsensitive job has nothing to do with protecting the security of the United States, the government's right to preserve itself in the world as it is has nothing to do with this case. The ominous theory that the right of fair trail ends where defense of security begins is irrelevant.

On this record we have no sufficient reason to doubt Miss Bailey's patriotism, or that her ability and experience were valuable to the government.  We have no reason to suppose that an unpatriotic person in her job could do substantial harm of any kind. Whatever her actual thoughts may have been, to oust her as disloyal without trial is to pay too much for protection against any harm that could possible be done in such a job. The cost is too great in morale and efficiency of government workers, in appeal of government employment to independent and inquiring minds, and in public confidence in democracy. But even if such dismissals strengthened the government instead of weakening it, they would still cost too much in consititional rights. We cannot preserve our liberties by sacrificing them.